In-house Lawyer Research Articles

Does More Variable Compensation Prompt More Business Prospecting By General Counsel?

Executive compensation researchers ignore a firm’s senior in-house lawyer or general counsel (GC), perhaps because they assume variable compensation like stock awards is irrelevant to executives primarily tasked with regulatory compliance and legal monitoring –gatekeeping-- rather than identifying and exploiting value-creating business opportunities –prospecting. We show otherwise. Difference-in-difference analyses of US firms immediately before and after the sudden and unexpected emergence of patentable “business method” innovations in late 1995 indicate that: 1) firms paying GCs more variable compensation patent more business method innovations; and 2) these positive effects are magnified for GCs with higher status and fewer gatekeeping burdens at firms with more patenting experience. GCs merit attention in executive compensation research when that research investigates business prospecting related to GC legal and regulatory expertise.

The (Re)Making of a Modern Lawyer – An In-House Lawyer’s Pandemic Reinvention Journey

The (Re)Making of a Modern Lawyer – An In-House Lawyer’s Pandemic Reinvention Journey

Professional and moral responsibilities of notaries overseeing agricultural land conversions

An increasing number of residents has indirectly affected demands for housing. However, not all agricultural land is eligible for conversion. Law Number 41 of 2009 concerning the Protection of Sustainable Food Agriculture Land (SFAL Law) allows for converting land functions only if two conditions are fulfilled, namely natural disaster and public infrastructure construction. This research utilizes a standard method through a normative juridical approach. The results show that based on Article 7 Paragraph (1) of Government Regulation Number 37 of 1998 concerning Land Deed Officer Regulations, Land Deed Officer can concurrently act as Notary, Consultant, or Legal Advisor. The function as an In-House Lawyer requires them to provide public assistance in land conversion. They must also possess a moral responsibility to provide guidance or counseling on the negative impacts of reduced agricultural land, specifically food sustainability. In conclusion, the Notary/Land Deed Official’s professional and moral responsibilities apply when they oversee the land conversion process. This study recommends that counseling conducted by Notaries/Land Deed Officials relating to food security and sovereignty should be carried out continuously and periodically to the public.

“The In-House Lawyer: A Deskilled Professional”

Contrairement aux avocats qui travaillent en cabinet, les juristes d’entreprise font partie des organisations qu’ils conseillent. À partir du cas d’un service juridique d’une grande enseigne de la distribution, nous montrons comment les juristes gèrent la tension entre leur aspiration à l’autonomie professionnelle et les contraintes inhérentes au travail en col blanc au sein de grandes organisations. Pour être en mesure de formuler efficacement des prescriptions auprès des non-juristes, la direction juridique étudiée s’engage dans la voie de la routinisation de ses pratiques. Cette organisation du travail, qui se double d’une forte hiérarchisation, provoque un sentiment de déqualification chez les juristes subalternes, qui varie toutefois en fonction de leur trajectoire professionnelle.

Establishing internal control system of corporate and role of the In-House lawyer

Establishing internal control system of corporate and role of the In-House lawyer

D’un droit défensif à un droit coopératif : la nécessaire réforme de notre justice pénale des affaires

L’année 2014 a été marquée par deux affaires dans lesquelles de grandes entreprises françaises ont eu à verser des sommes conséquentes au ministère américain de la Justice (DOJ) au titre d’amendes transactionnelles. Les deux grandes entreprises françaises ont peut-être payé pour leurs fautes mais aussi ‒ voire surtout ‒ pour leur mauvaise compréhension d’une nouvelle règle du jeu du « business mondial ». Ces deux affaires illustrent l’apparition d’un nouveau paradigme en droit des affaires, largement inspiré par la culture du droit américain, qu’il est urgent de saisir pour adapter notre droit. Cet enjeu est devenu crucial pour la protection de nos entreprises à l’heure du droit global. Il l’est d’autant plus que le nouveau modèle en construction est en perpétuelle mutation et qu’il est nécessaire de s’adapter rapidement. À cette fin, il convient de détailler les enseignements de ces affaires, non seulement en vue de transformer notre système de justice mais, plus profondément encore, notre culture, et de la mettre ainsi au diapason de notre temps.

Mapping the Moral Compass: The Relationships between In-House Lawyerss Role, Professional Orientations, Team Cultures, Organisational Pressures, Ethical Infrastructure and Ethical Inclination

This report provides a unique profile of real differences within the in-house community. We examine individual and team orientations to the in-house role; the invocation of professional principles; and ethical infrastructure, ethical pressure and relationships with the employer. We relate these to externally validated indicators of ethical inclination: (i) moral attentiveness (the extent to which people deal with problems as moral problems and the extent to which people identify moral problems); and (ii) moral disengagement (the extent to which people are inclined to morally disengage to behave unethically without feeling distress). It is as rich a picture of what it means to be an ethical in-house lawyer as has ever been attempted. Through this research we profile the characteristics of individuals, teams and environments most associated with a stronger or weaker inclination to behave ethically. It is important to emphasise that this mapping of the ‘moral compass’ of in-house lawyers shows that ethicality is associated with individual and professional notions of the in-house role but also with team orientations and the broader organisational environment. Ethicality is both a systemic and individual phenomenon. To help understand the diversity in ethical identities, we identify four main groups of in-house lawyers (described in more detail in Chapter 9): • the Capitulators (who are reasonably morally attentive but are under ethical pressure and are less morally engaged); • the Coasters (who do not perceive themselves as under ethical pressure and have moderate-low levels of moral attentiveness but not lower moral disengagement); • the Comfortably Numb (who do not perceive high levels of ethical pressure and have low levels of moral attentiveness and higher moral disengagement – the most concerning of the four groups); and,• the Champions (who are under the highest levels of ethical pressure but retain the highest levels of moral attentiveness and the lowest levels of moral disengagement). Our research suggests that ethical in-house practice is about individual understandings of the role (orientations towards commerciality; ethicality; independence; being a mere advisor; and exploiting uncertainty); it is about the approach of teams and the organisations those teams work in; it is about understanding and drawing on all the obligations of professionalism; and, it is about building a better infrastructure to manage the tensions within the role.

Candor Laws Growing, but Are They Effective?

Candor Laws Growing, but Are They Effective?

Too Big to Tax? Vanguard and the Armms Length Standard

Vanguard is the world’s largest complex of mutual funds, with over $3 trillion in assets under management, including $215 billion added in 2014. Vanguard’s main attraction to investors is its low costs. Profs. Freeman and Brown (2000) report that the advisory fees charged by the Vanguard Group “tend to present lower expense ratios than the rest of the mutual fund industry” because “Vanguard funds are run on the same basis as most companies in the economy: boards are unswervingly devoted to making as much money as possible…for shareholders [of the funds]. Stated differently, Vanguard funds are uncontaminated by the conflict of interest that affects most of the rest of the fund industry.” Michael Rawson, a Morningstar analyst, told the Financial Times in May 2015 that “[i]t is phenomenal that a single company could represent almost 20 percent of the US mutual fund industry. But they have done it through offering products that are consistently lower cost than other funds”. The main reason for Vanguard’s lower fees than, for example, the fees charged by Fidelity (its closest rival) is that Vanguard has a unique structure, approved by the SEC in 1975: The investment manager (Vanguard Group Inc., or VGI) is owned by the Vanguard domestic mutual funds (the Funds) in proportion to Net Asset Value. This structure, Profs. Freeman and Brown argue, means that there is no conflict of interest between VGI and the Funds, while every other mutual fund complex has the advisor charging too much because it puts the interest of shareholders of the advisor ahead of investors that are shareholders of the funds.Coates and Hubbard (2007) have argued that this situation should result in investors moving from other funds to Vanguard, and the recent phenomenal growth of Vanguard suggests that they were right. But there is a problem: As David Danon, a former Vanguard in-house tax lawyer, has argued in a lawsuit filed in 2013, the Vanguard structure directly contravenes the arm’s length standard of Treags. Reg. 1.482-1(b)(1) because VGI provides services to the Funds “at cost”, i.e., without charging an arm’s length profit. VGI is a C corporation and the Funds are Regulated Investment Companies (RICs) not taxable at the corporate level, so this situation results in avoidance of billions of corporate taxes. The IRS has not taken action on Danon’s whistleblower complaint, nor has the NY Attorney General intervened in his qui tam lawsuit against Vanguard. Given the millions of Americans that have invested in Vanguard funds and the billions in tax at stake (which would presumably be borne by the investors in the Funds if Vanguard raises its fees to include the tax), this case raises the question: Is Vanguard too big to tax?This article will argue (a) that the Vanguard “at cost” pricing is unsustainable under the arm’s length standard, and that the IRS will win in court if it challenges Vanguard’s transfer pricing; (b) that the Vanguard case illustrates some of the problems with the arm’s length standard and would have been avoided had unitary taxation principles been applied to Vanguard and its Funds.

Technology and the Law - New Opportunities for Lawyers and Their Clients

The pace of change in the legal industry is accelerating. Greater price competition, the difficulty to hold and promote new equity partners, lower profits...are only some of the key changes that big law currently is facing. More than 7 years after the financial crisis these changes undermining the current state of the legal profession appear to be permanent. In fact traditional law firms are losing business to larger in-house lawyer teams, specialized contract law boutiques or contract management firms, accounting firms but also new legal tech companies, which were able to find innovative and more cost efficient ways to provide legal services to clients. Further, it is interesting to note that the legal services industry is growing while law firms are not - at least on average - anymore. At the same time the number of companies providing legal services, so called ABS, has grown dramatically. Finally, law firm salaries have been dropping since 2008 and do not seem to come back to pre-crisis levels.Companies like Airbnb and Uber and the disruption they brought to their respective industries are examples that show what could happen to the legal industry if new technologies take over and design thinking is applied to legal services. These companies completely changed the perspective that traditional actors in the taxi and hotel industry had with regard to pricing, service, quality, user friendliness...For too long, taxis and hotels went unchallenged in the way they structured their market - so they had no incentive to redesign their products or services. Law firms need to be careful not to fall into the same lethargy if they want not to be submerged by the wave of change that the industry is facing and will be facing at an accelerating pace. It is only a question of time that current market leaders in the legal industry will be challenged by smaller firms that will be able to leverage their potential via technology or alternative approaches to pricing, service delivery and product quality.This paper suggests that lawyers can avoid to be overrun by the wave of change if they grasp the potential of new technologies, design thinking and user centered attitudes. Lawyers could develop new products by transposing the underlying functionalities of the various technologies their clients (but also they themselves) use in their everyday or professional lives to the legal services they provide. Why not develop new tools of client lawyer or lawyer-lawyer interaction by using google docs, the idea of spam filters, google maps or machine translation. Legal tech start ups in the US and UK show the way: LexMachina, Ravel law, shake law, legal zoom, rocket lawyer...are only some of the many examples that illustrate how legal technology and design thinking can change the way lawyers operate. We suggest in this paper that the experience and insights that lawyers have of the relatively closed legal profession makes them uniquely positioned candidates to develop new business opportunities in the law. They just need to be motivated and incentivized to grasp the opportunities of change. Technology and the law is an opportunity that no lawyer should miss if he wants to be a driver of change and not a person that is driven by change beyond its control.

Online chilling effects in England and Wales

Open and free internet-based platforms are seen as an enabler of global free expression, releasing writers from commercial and space constraints. However, many are working without the assistance of an in-house lawyer, or other legal resources. This may lead to undue suppression of public interest material, with important implications for freedom of expression and the democratic function of media. Two online surveys among digital and online journalists in England and Wales in 2013 indicated that the majority of encounters with defamation and privacy law take place outside the courts, with few formally recorded legal actions. This was particularly evident in a sample of ‘hyperlocal’ and local community publishers. In light of the results, this paper calls for a reappraisal of overly simplistic judicial and media applications of the ‘chilling effect’ doctrine, in order to expose its subjectivities and complexities. Additionally, attention needs to be paid to global and cross-jurisdictional media-legal environments, in order to help develop better internet policy and legal frameworks for protecting legitimate expression.

Book Review: Fighting for the Press: The Inside Story of the Pentagon Papers and Other Battles, by James C. Goodale

Fighting for the Press: The Inside Story of the and Other Battles. James C. Goodale. New York: CUNY Journalism Press, 2013. 260 pp. $20 pbk.Reviewed by: Roy S. Gutterman, Syracuse University, NY, USA DOI: 10.1177/1077699013506342The day before James C. Goodale began his book tour with a luncheon at the Committee to Protect Journalists in New York City, news broke that the Department of Justice had secretly subpoenaed telephone records of the Associated Press. This news was the first in a summer of breaking news of secret government surveillance programs and gov- ernmental efforts targeting leakers and directly and indirectly the media.The onslaught of government prosecutions of leakers, the continued controversy of Wikileaks, and the explosion of the National Security Agency (NSA) surveillance scandal and the Edward Snowden saga propelled Goodale's memoir, Fighting for the Press, to not only instantly relevant but also prescient.While the bulk of the book examines Goodale's role as an in-house lawyer at The New York Times during the Pentagon Papers litigation, he devotes two complete chapters to the Obama administration's hardline approach to dealing with leaks and leakers of the nation's security secrets. He also criticized the administration's War Against the Press.Goodale recites how as a candidate Obama was critical of Bush's dealings with the press and he advocated for the federal shield law. However, as president, Goodale believes Obama is worse than Bush in using criminal laws to plug leaks and asking reporters to disclose confidential sources. He concludes that the Obama administration may be even more malevolent toward press rights than the Nixon administration.Thus, the book comes full circle from Goodale's early days as a young general counsel at The New York Times to the birth of what is commonly known as the Amendment bar. In legal circles, Goodale is widely considered the dean of the First Amendment bar and one of its primary founders.Overall, Fighting for the Press is Goodale's contribution to the library of books on the Papers, and the historic fight over censorship, national security, and the First Amendment. There is no shortage of books and memoirs on the topic-David Rudenstine's The Day the Presses Stopped, Floyd Abrams's Speaking Freely, and, of course, the author and leaker Daniel Ellsberg's two books on the topic, Secrets and on the War.Goodale adds to the library by telling the story behind The New York Times' decision to take on the Nixon administration, standing firmly behind the First Amendment. The case, the United States v. New York Times, marked its fortieth anniversary in 2011, and is an important element of practically any First Amendment law course.How it got there is Goodale's story. Supported by his own encyclopedic legal knowledge and law that he helped develop, Goodale paints a picture using case law, transcripts of hearings, memos, and decades of files that only an insider could employ. …

The Ethics of the In-house Lawyer

The Ethics of the In-house Lawyer

Counterfeiting and piracy: the industry perspective

In this well illustrated article, the author, an in-house lawyer with a leading German high-tech company, outlines his views on counterfeiting problems from the look-out of the industry. Dr Engels explains certain pitfalls of the system of border measures and questions the efficiency of the Enforcement Directive. In these vibrant pleadings, the author reminds us that pirates are competitors who do not battle with the same arms as a legitimate business. The paper explains some of the methods used by pirates and submits that the liability of intermediaries has to be retained more often and that authorities need to assume their liability.

Criminal Risk in Corporate Practice - Balancing Duties and Risk While Ensuring Corporate Compliance as an In-House Lawyer

What are the duties of in-house lawyers in general and to ensure the Board is fully informed under the Corporations Act, in particular? What are the risks? How can those risks be ameliorated?

The Ethical Health Lawyer

Health care may be the most regulated industry in the United States, at least in terms of the volume of State and Federal laws and regulations that affect business practices. Lawyers who counsel health care clients often face a dilemma: is the client seeing legitimate advice about the legal limitations on his or her conduct, or is the client seeking to use the lawyer's skills to evade the law? The history of health care fraud prosecutions involving lawyers and other professional advisors in recent years makes this an issue of more than academic interest. The well publicized case of U.S. v. Anderson, in which health care counsel faced charges as co-defendants for purported kickback violations, the recent prosecution of Ernst & Young for allegedly aiding Medicare fraud on behalf of client hospitals, and the recent indictment and conviction of an in-house lawyer in a national durable medical equipment fraud case, make clear that the wrongful use of legal advice by health care clients can lead to significant criminal and civil charges against attorneys.

Perspectives — Masters of Brinkmanship: Reflections of an in-house pharmaceutical lawyer

Perspectives — Masters of Brinkmanship: Reflections of an in-house pharmaceutical lawyer

An Interview with Timo Lumme, Managing Director of Quokka Sports Ltd

* Keywords: Sports Sponsorship, Ambush Marketing, Internet Introduction Timo Lumme is an experienced player in the world of Sport Marketing and Management. In 1988, he joined International Management Group (IMG) as Associate Counsel for IMG's sports clients, moving to France in 1989 to head up IMG's team within COJO (Comite d' Organisation des Jeux Olympiques) with responsibility for the international marketing of the 1992 Albertville Games. Lumme also managed the group's commercial consultancy relationship with the 1994 Lillehammer Olympic Winter Games. In 1992, he was promoted to Managing Director for IMG Italy with responsibility for all client, event and television activities. In 1994, Lumme returned to the UK as Vice President of Business Development, jointly spearheading IMG's entry into the football business. In 1996, he joined Nike as European Sports Marketing Director, responsible for Nike's Sports marketing strategy, management and execution in Europe. He joined Quokka Sports Ltd in 1999 as Managing Director, Europe. Lumme is a qualified solicitor and is fluent in five languages. Here he talks to Adrian Hitchen, Executive Director of SRi. AH: I thought we could perhaps begin, Timo, with some background to your entry into the field of sports marketing. Could you tell us what first attracted you to sports marketing and specifically to IMG? TL: Sure. I actually started off life as a lawyer and, in fact, I qualified and practised as a financial lawyer in the city of London for a firm called Slaughter & May. first attracted me, apart from my love of sport, was the fact that I was actually doing National Service in Finland in the snow, and I read Mark McCormack's book What they didn't teach you at Harvard Business School. I began to realise there was an industry called sports marketing, and quickly found out about it and sought out an opportunity in the firm that I finally joined, and that was IMG. AH: So did you join IMG as a lawyer? TL: I went in as a lawyer initially, yes. I was what they call an associate counsel, basically an in-house lawyer, and I was there for 11 months before I was then posted off to work on the Albertville Olympics. AH: A fact which leads into my next question. We first met, I think, when you were at IMG, at one of those early Olympic workshops. Staying with history for a moment, how did you see Olympic marketing evolve over that period, and how would you contrast that era with the situation today? TL: I think they were fairly interesting times, on a couple of fronts. Olympic marketing, as you know better than me really, probably kicked into gear in 1984, but it wasn't until 1988 that the international programme, the TOP programme, kicked off for the first time. When I came into the picture, in 1989, it was the beginning of the second round of sponsorships (TOP 2) which covered Albertville and Barcelona. was particularly interesting was that the programme was having to fit into the construct which now included a slightly more developed domestic programme which, of course, was what IMG had been brought in to work on. IMG acted for the Organising Committee and, as such, had a direct mandate to develop the local programme. In those days one of the major issues, certainly at the beginning, was how the international programme would sit with the domestic programme. Clearly, you could not have Coca-Cola as an official sponsor world-wide, including the Games in Albertville, for the Organising Committee then to go and sell that same category, granting exclusive rights, and so that was an interesting time! It was particularly interesting in the area of technology. I think one of the things that has changed is the companies themselves, like the technology companies which have tended to converge more and more. Whilst we may have been able to do deals with, say, a Panasonic, a Philips, and a third company in those days, generally the technology companies are now providing services which have converged so it is much more difficult to distinguish between them. …